United States District Court, D. Hawai'i
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For Joe Dettling, Robert Cabos, Plaintiffs: Harvey M. Nakamoto, Jr., LEAD ATTORNEY, Aiea, HI; Elizabeth Jubin Fujiwara, Fujiwara and Rosenbaum, LLLC, Honolulu Local Office, Honolulu, HI; Joseph T. Rosenbaum, Law Office of Elizabeth Jubin Fujiwara, Honolulu, HI.
For National Oceanic and Atmospheric Administration, Commerce, Department of, U.S., Defendants: Edric Ming-Kai Ching, LEAD ATTORNEY, Office of the United States Attorney, Honolulu, HI; Rickey D. Turner, U.S. Department of Justice, Environment & Natural Resources Division, Wildlife & Marine Resources Section, Denver, CO.
For United States of America, Defendant: Edric Ming-Kai Ching, LEAD ATTORNEY, Office of the United States Attorney, Honolulu, HI.
ORDER GRANTING DEFENDANTS' AMENDED MOTION TO DISMISS
Alan C. Kay, Senior United States District Judge.
For the following reasons, the Court hereby DISMISSES Plaintiffs' Second
Amended Complaint in its entirety with partial leave to amend, as set out in detail below.
Plaintiffs Joe Dettling and Robert Cabos filed their original complaint in this action on June 14, 2011. (Doc. No. 1.) On August 9, 2012, they filed the First Amended Complaint, naming as defendants the United States and the U.S. Department of Commerce, acting through co-defendant the National Oceanic Atmospheric Administration (together, " NOAA" ). (Doc. No. 35.)
NOAA filed a Motion To Dismiss the First Amended Complaint on September 21, 2012, arguing that the Court lacked subject matter jurisdiction over Plaintiffs' claims and that Plaintiffs had failed to state their claims. (Doc. No. 40.) On May 31, 2013, this Court granted NOAA's Motion to Dismiss and dismissed Plaintiffs' First Amended Complaint in its entirety, granting Plaintiffs partial leave to amend. (Doc. No. 68.)
Plaintiffs timely filed a Second Amended Complaint, the currently operative complaint, on June 30, 2013. (Doc. No. 70 (" SAC" ).) NOAA filed the instant Amended Motion to Dismiss the Second Amended Complaint on August 12, 2013, arguing that Plaintiffs' Second Amended Complaint suffers from the same factual and legal flaws as the previous complaint that this Court dismissed on May 31, 2013. (Doc. No. 73 (" Mot." ).) On September 30, 2013, Plaintiffs filed an Opposition. (Doc. No. 75.) NOAA filed its Reply on October 24, 2013. (Doc. No. 82.)
A hearing on the motion was held on November 5, 2013. At the Court's request, the parties submitted supplemental briefing on November 8, 2013 addressing additional evidence that Plaintiffs introduced during the hearing. (Doc. Nos. 86, 87.)
This case concerns NOAA's alleged improper denial of Plaintiffs' fishing rights within the Papahanaumokuakea Marine National Monument (" PMNM" ), located near Hawaii. Plaintiffs allege that they
fished in the PMNM area for many years prior to its establishment in 2006. (SAC ¶ ¶ 19, 38.)
I. Proclamation 8031
On June 15, 2006, President George W. Bush issued Proclamation 8031, which established the waters previously designated as the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve as the new Northwestern Hawaiian Islands National Monument. See 71 Fed. Reg. 36,443, 36,453-54 (June 26, 2006). The Monument's name was later changed to the Papahanaumokuakea Marine National Monument (" PMNM" ). Proclamation No. 8112, 72 Fed. Reg. 10,031 (March 6, 2007). Proclamation 8031 prohibited virtually all commercial and recreational fishing within the bounds of the ...